Neuberger & Partners LLP
Bring Us Your Case We’ll Provide Results 888-759-2810

Charter rights: New framework to measure reasonable time to trial

Last week, the Supreme Court of Canada issued two important cases with significant impact on the Charter rights of Canadians accused of crimes. The court established a new framework for lower courts to use when they assess whether the length of time criminal defendants wait for trial complies with the constitutional right to trial within a reasonable time. 

Under the Canadian Charter of Rights and Freedoms, Section 11 grants the right to anyone charged with a criminal offense to be “tried within a reasonable time.” Previously, to assess whether time to trial was reasonable, Canadian courts used a test established by the Supreme Court in a case called R. v. Morin. Morin required courts to make an individualized assessment in each case of all the reasons that contributed to delay to determine whether the time was reasonable.

In both of last week’s cases, the Supreme court found that the defendants Charter rights had been violated by lengthy waits until trial, setting aside their convictions and staying the proceedings. 

R. v. Jordan was an appeal from British Columbia of a conviction on drug charges after a trial that concluded 49.5 months after the defendant was charged. The delay caused by the Crown and not the actions of the defendant was 44 months. 

The court set out the new framework in the Jordan opinion, which established a “presumptive ceiling” beyond which the delay until trial will be presumed to have been unreasonable, unless the Crown can show the delay was caused by “exceptional circumstances.” 

The presumptive ceiling is: 

  • Eighteen months for cases in provincial courts (in Ontario, this is the Ontario Court of Justice)

  • Thirty months for cases in superior courts (in Ontario, this is the Superior Court of Justice, where more serious crimes are tried) or in provincial courts after a preliminary inquiry 

The number used for the presumptive ceiling is the actual number of months minus any time of delay caused by or waived by the defence. 

In a future post, we will tell you more about what the Supreme Court had to say in Jordan about the new framework.